IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LESLIE A. CANNON, SR., 

Plaintiff,

Case No. 2:12-cv-384

v. JUDGE GREGORY L. FROST

Magistrate Judge Norah McCann King

LEXUR APPRAISAL SERVICES, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of a motion to dismiss filed by

Defendants, Lexur Appraisal Services and Lexur Enterprises, Inc. (ECF No. 9); a memorandum

in opposition filed by Plaintiff, Leslie A. Cannon, Sr. (ECF No. 11); and a reply memorandum

filed by Defendants (ECF No. 12). Also before this Court is a motion to strike filed by

Defendants. (ECF No. 15.) For the reasons that follow, this Court finds the motions not well

taken.

I. Background

According to the Complaint, Defendant Lexur Enterprises, Inc. is the parent company of

Defendant Lexur Appraisal Services. The latter company previously employed Plaintiff, Leslie

A. Cannon, Sr., as a commercial appraiser. From January 2008 through November 2010, Lexur

Appraisal Services allegedly paid the non-Caucasian Plaintiff less than Caucasian appraisers the

company employed, despite Plaintiff having equal or greater years of experience. Plaintiff

claims that the pay disparity is the result of race discrimination.

Proceeding pro se, Plaintiff filed his Complaint on May 7, 2012. (ECF No. 4.) 

Defendants have filed a motion to dismiss (ECF No. 9) and a motion to strike various papers

Case: 2:12-cv-00384-GLF-NMK Doc #: 16 Filed: 10/01/12 Page: 1 of 5 PAGEID #: <pageID>
Plaintiff has filed (ECF No. 15). The parties have completed briefing on the motion to dismiss,

and Plaintiff did not file a response to the motion to strike by the briefing deadline. Both

motions are ripe for disposition.

II. Discussion

A. Standard involved

Defendants move for dismissal on the grounds that Plaintiff has failed to set forth a claim

upon which this Court can grant relief. This Federal Rule of Civil Procedure 12(b)(6) argument

requires the Court to construe the Complaint in favor of Plaintiff, accept the factual allegations

contained in that pleading as true, and determine whether the factual allegations present any

plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). The Supreme

Court has explained, however, that “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. Consequently, “[d]etermining

whether a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

To be considered plausible, a claim must be more than merely conceivable. Twombly,

550 U.S. at 556; Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548

(6th Cir. 2007). What this means is that “[a] claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The factual allegations of a pleading

“must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at

2

Case: 2:12-cv-00384-GLF-NMK Doc #: 16 Filed: 10/01/12 Page: 2 of 5 PAGEID #: <pageID>
555. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).

B. Analysis

As a threshold matter, the Court notes that Defendants’ motion to strike is moot. (ECF

No. 15.) The motion targets the over 950 pages of material that Plaintiff filed with the Court on

July 13, 2012. (ECF No. 13.) Defendants correctly assert that pursuant to the Local Civil Rules,

Plaintiff was required to file these documents with his memorandum in opposition if he sought to

rely upon them in regard to the motion to dismiss. Defendants also assert that because all of the

documents are unauthenticated, they are inadmissible and cannot overcome a motion to dismiss. 

Defendants therefore seek to strike the July 13, 2012 documents.

This Court does not care about the documents, just as it does not care about the additional

documents that Plaintiff improperly submitted with his memorandum in opposition to

Defendants’ motion to dismiss. In addressing the motion to dismiss, the Court declines to

consider any material that is extrinsic to the pleading. Thus, to the extent that Plaintiff sought to

convert the motion to dismiss into a motion for summary judgment, such an attempt has proven

unsuccessful. The consequent result of such a lack of success is that the Court need not strike

the documents because this Court is simply going to ignore them. The Court therefore DENIES

the motion to strike as moot. (ECF No. 15.) 

Turning to the substance of the motion to dismiss, the Court finds Defendants arguing

that Plaintiff has failed to assert a claim upon which this Court can grant relief. Defendants

argue that the pleading fails to satisfy Twombly and Iqbal because the pleading is “merely a

series of unsupported allegations and conclusions.” (ECF No. 9, at 5.) Defendants posit that

“[t]he contention that other employees of lesser experience were paid more does not state a

3

Case: 2:12-cv-00384-GLF-NMK Doc #: 16 Filed: 10/01/12 Page: 3 of 5 PAGEID #: <pageID>
plausible claim” because “[t]here are numerous legitimate, non-discriminatory business reasons

that govern employee compensation in any business, and experience level is merely one.” (Id.)

This Court agrees with Defendants that Plaintiff’s pro se Complaint is hardly a model

pleading. But the Court disagrees that it fails to satisfy Rule 12(b)(6). Necessarily accepted as

true in this Rule 12(b)(6) context, the Spartan but clear factual contentions of the Complaint

provide that Plaintiff worked for Lexur Appraisal Services and that, from January 2008 through

November 2012, the company paid Plaintiff less than other similar commercial appraisers

despite Plaintiff having equal or greater years of experience. The Complaint identifies these

other appraisers as Caucasian, and by asserting race discrimination as the cause of the purported

pay disparity, Plaintiff implicitly identifies himself as not Caucasian. 

These factual contentions are just enough to survive a Rule 12(b)(6) challenge. Federal

Rule of Civil Procedure 8 only requires Plaintiff to provide fair notice of his claim, and Rule

12(b)(6) can only dispose of those claims that based on the facts alleged do not appear plausible. 

Defendants may indeed be correct in asserting that non-discriminatory business reasons exist to

explain any pay disparity. It is thus plausible that paying a non-Caucasian employee less than

similarly situated Caucasian employees would not be due to race. Defendants might indeed be

able to readily obtain summary judgment based on such non-discriminatory reasons. But it is

also wholly plausible that paying a non-Caucasian employee less than similarly situated

Caucasian employees can be due to race. 

Rule 12(b)(6) does not impose a probability requirement in which a court must ascertain

the probability or likelihood of success based on the facts a court is mandated to accept as true. 

Twombly, 550 U.S. at 556. Rather, Rule 12(b)(6) requires a court to ask whether the factual

4

Case: 2:12-cv-00384-GLF-NMK Doc #: 16 Filed: 10/01/12 Page: 4 of 5 PAGEID #: <pageID>
contentions, accepted as true, allow the court to draw the reasonable inference that Defendants

are liable for the misconduct alleged. These facts do, albeit perhaps just sufficiently. The Court

understands Defendants’ argument that Plaintiff has failed to assert any fact that suggests why he

thinks race is the reason for the pay disparity instead of any other possible reason. His linking of

race as the causative factor for pay disparity borders simply being a legal conclusion. But this

Court is also mindful that it is required to “liberally construe pro se complaints and hold such

complaints to a less stringent standard than pleadings prepared by attorneys.” Frengler v. Gen.

Motors, No. 11-3378, 2012 WL 2044419, at *2 (6th Cir. June 7, 2012). 

The court of appeals has noted that such “lenient treatment has limits.” Id. Plaintiff’s

Complaint is indeed pushing against those limits. But this is not an instance in which a

complaint is so deficient that it would, for example, force a defendant to guess at what claim a

plaintiff is asserting. Id. Although the Court recognizes that Plaintiff has not pled detailed

connecting facts linking the conduct asserted to his race, he has pled facts that do not make an

inference of race-based disparity unreasonable. Accordingly, although admittedly with some

hesitance, the Court declines Defendants’ invitation to dismiss the Complaint.

III. Conclusion

The Court DENIES Defendants’ motion to dismiss (ECF No. 9) and motion to strike

(ECF No. 15). 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

5

Case: 2:12-cv-00384-GLF-NMK Doc #: 16 Filed: 10/01/12 Page: 5 of 5 PAGEID #: <pageID>